Rudolph: Sniper Case Deja Vu?
Attorney Andrew Cohen analyzes legal issues for CBSNews.com and CBS News.
Now that the police have finally stumbled over Eric Robert Rudolph, prosecutors have to figure out what to do with him. Because the accused bomber has been charged with different crimes in different jurisdictions, and because there is so much interest in his fate, we are likely to see over the next few days a slightly more mellow version of the prosecutorial free-for-all we saw last fall after the two sniper suspects were captured in Maryland.
Rudolph was arrested in North Carolina, which means his initial court appearance likely will take place there. It's even conceivable (but not terribly likely) that Rudolph would be charged with federal or state crimes in North Carolina. First, however, law enforcement specialists are going to be trying their best to get Rudolph talking about anything he is willing to talk about.
If he is the Olympic Park bomber, or if he is responsible for the death of a man in Alabama or injuries to scores of others-- right now these are still open questions, remember-- the best possible thing that could happen to the police would be to get Rudolph to start explaining himself. Nothing like a few incriminating statements to top off a circumstantial case. It's better than even money, then, that the top interrogators the nation can muster now are working Rudolph in order to see what he is willing or able to say.
But whether Rudolph talks or not, and whether North Carolina has an interest in him or not, he is not likely to stay there for long. After an initial "identity" hearing, Rudolph is likely to be transferred in federal custody to either Georgia or Alabama or even to Washington, D.C., where he will be kept until a final decision is made on what ought to happen to him next. John Allen Muhammad and Lee Boyd Malvo were similarly kept in federal custody in Maryland until representatives of all of the jurisdictions with an interest in them could caucus and come up with a plan. The same scenario is likely here.
Alabama has a strong interest in trying Rudolph for the 1998 bombing of an abortion clinic in Birmingham that killed an off-duty police officer. Georgia has a strong interest in trying him for the Olympic Park bombing in 1996 and for two other bombings in the state in 1997. And the federal government has a strong interest in trying him for various federal crimes that relate to those bombing charges. Rudolph could conceivably be tried in all of these jurisdictions, one after the other, since double jeopardy would not attach to any single charge. The question is: who gets to go first?
I don't know the answer to that question. Rudolph faces a potential death penalty for the Alabama bombing and for the Georgia bombing as well. He faces serious time under federal law, too, if he is convicted of bombing, terrorism, and conspiracy. In fact, the death penalty is probably as much an option for Rudolph in federal court as it was for Oklahoma City bombers Timothy McVeigh and Terry Nichols when they were tried under federal law in Denver in 1997.
At the start, then, you would think since Rudolph was the target of such a national hunt that the feds would want him tried first in federal court, either in Georgia or Alabama, before permitting him to be tried under state law if that is deemed necessary at some point down the road. You would think, in other words, that the jurisdictional push-and-pull over the next few days will focus more on which federal jurisdiction gets him rather than upon whether he should be transferred over to state authorities and prosecutors the way Malvo and Muhammad were transferred over last fall.
At least one law enforcement official said on television Saturday morning that the Clinton Administration had in place a plan to try him first in Birmingham but, of course, there is a new sheriff in town in Washington. That sheriff, U.S. Attorney General John Ashcroft, may see things differently from the way his predecessor, Janet Reno, saw things. And just as it was the Attorney General who ultimately decided where Malvo and Muhammad would first end up, it will be the Attorney General who decides where Rudolph gets tried first.
You could make a decent argument for any of the two main contenders. Rudolph is charged with three separate bombings in Georgia, including the attack which is by far the most infamous-- the bombing at Atlanta'a Centennial Olympic Park. One woman died as a result of the bombing-- of a heart attack caused, authorities say, by the chaos created by the bombing-- so it's at least arguable that the most symbolic trial ought to occur first and belongs in federal court in Georgia.
But the Birmingham bombing with which Rudolph is charged killed a policeman-- off-duty, but still-- so you also could argue with a straight face, as apparently the Clinton Justice Department did, that the Alabama case may be the strongest and most emotional and thus deserves the first place in line.
The decision, no doubt, will come down to where authorities think they have the best evidence against Rudolph. And no doubt the Justice Department and state prosecutors have the luxury of knowing that if things don't go right the first time around they'll get a second and maybe a third and a fourth crack at Rudolph.
By Andrew Cohen